Now Hear This - We Need a New Legal Code for the Drone War

The recent release of a Justice Department white paper regarding targeted killings of U.S. citizens abroad sparked a great deal of controversy. Much of the debate focused on whether the U.S. President has “the legal authority to use a weaponized drone to kill an American not engaged in combat on American soil.” 1 The answer provided by the Attorney General was simply one word: “No.” Although this is an important issue worth examining, it ignores a more fundamental one that deserves further discussion: the so-called institutionalization of this weapon and its use off the battlefield.

President Barack Obama’s efforts to establish explicit guidelines and standards regarding the use of unmanned aerial vehicles (UAVs) against terrorists overseas significantly accelerated before the 2012 presidential election. As reported by The New York Times , President Obama’s advisers intended to turn these guidelines over to a new Romney administration had the election brought different results. 2 These guidelines essentially “institutionalize” the drone program and attempt to “put a legal architecture in place” for their use in the future. But the attempt to establish UAV strikes as a customary counterterrorism tool became even more complicated when a United Nations expert initiated an investigation into the legality of their use. 3 Now more than ever it is critical to examine the legal justifications given by the administration and whether they will remain relevant as the military withdraws and ends the armed conflict in Afghanistan.

In April 2012, the President’s counterterrorism adviser (now CIA Director) John Brennan publicly attempted to justify the expansion of what has been called “the drone war.” In his speech to the Woodrow Wilson International Center for Scholars he stated: “As a matter of international law, the United States is in an armed conflict . . . and we may also use force consistent with our inherent right of national self-defense.” 4

Currently the use of force is legally justified only if in response to an armed attack, if an armed attack is imminent, or if authorized by the U.N. Security Council. Al Qaeda executed an unlawful attack on the United States in September 2001, and under international law, we had the right to defend ourselves and to take action to prevent future attacks. We did so when we invaded Afghanistan. The use of UAVs to target al Qaeda leadership there has proven successful, decimating those responsible for the 9/11 attacks. But when the conflict in Afghanistan ends in 2014, how will the administration justify continued UAV strikes in Yemen, Somalia, or Pakistan, where we are not engaged in traditional armed conflict?

Furthermore, as 2001 recedes further into the past, the causal link between those we target today and those who planned and carried out the 9/11 attacks becomes increasingly difficult to show. The laws of armed conflict codified in the Geneva and Hague Conventions recognize civilians and members of the armed forces. They do not recognize terrorists. This gap has forced the administration to be creative when targeting individuals overseas—often leading to political pressure and increased scrutiny. To help fill this gap, the International Committee of the Red Cross (ICRC) has published interpretive guidance on how to treat civilians who engage in direct hostilities. 5 However, the ICRC recommendations do not carry the weight of law.

Given the administration’s intent to institutionalize the drone war post-Afghanistan, the gap between the traditional laws of armed conflict and how we intend to defend this country needs to close. As a way forward, the United States ought to work with international partners to establish an updated legal framework that recognizes this new era in international conflict that is now almost 12 years old. They could start by explicitly recognizing as aggressors transnational terrorist organizations such as al Qaeda and its affiliates. An updated legal framework would help maintain our ability to continue preventing future attacks, even in the face of increasing international scrutiny.